Vacic v DC Strategy Pty Ltd - [2018] FCCA 3151

FEDERAL CIRCUIT COURT OF AUSTRALIA

VACIC v DC STRATEGY PTY LTD

[2018] FCCA 3151

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Whether without prejudice letter is admissible under exceptions in s.131 of the Evidence Act 1995 (Cth) – whether letter affected the Applicant’s workplace rights within the meaning of s.340 of the Fair Work Act 2009 (Cth) – whether without prejudice letter constitutes a threat of adverse action affecting Applicant’s rights – letter did not constitute a threat, and was not capable of being a threat, of adverse action.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342

Evidence Act 1995 (Cth), s.131

Cases cited:

FairWork Ombudsman v Australian Workers’ Union [2017] FCA 528

Glass v Demarco [1999] FCA 482

Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352; 84 NSWLR 547

Applicant:

DEJAN VACIC

Respondent:

DC STRATEGY PTY LTD

File Number:

MLG 2777 of 2017

Judgment of:

Judge Baird

Hearing date:

27 February 2018

Date of Last Submission:

27 February 2018

Delivered at:

Melbourne

Delivered on:

7 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Kenneally

Solicitors for the Applicant:

Mr S Platel, McDonald Murholme

Counsel for the Respondent:

Mr Follett

Solicitors for the Respondent:

Mr M Robinson, FCB Workplace Law

ORDERS (Made 27 February 2018)

Clauses 56(xx) and (xxi) of the Applicant’s Statement of Claim (Claim) be struck out.
The particulars to clause 52 of the Claim be struck out.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2777 of 2017

DEJAN VACIC

Applicant

And

DC STRATEGY PTY LTD

Respondent

REASONS FOR JUDGMENT

Overview

On 27 February 2018 I heard argument as to whether “clauses” [52] and [56] (xx) and (xxi) of the Points / Statement of Claim should be struck out. The Applicant asserted that the claims made by certain of the particulars to [52] and by subparagraphs (xx) and (xxi) of [56] were founded on a without prejudice letter dated 5 October 2017 from the Respondent employer to the Applicant employee (5 October Letter) communicated by email that day, and that the letter was admissible.
The substantive proceeding is docketed to Judge Riethmuller, and in the ordinary course will proceed to hearing before him. Through their counsel both parties accepted that the strike out application and the question of the admissibility of the 5 October Letter could be determined as a separate question by me, and assured me that my hearing and determination of these issues would obviate the need to deal with them at final hearing, and the possibility that, depending upon the ruling, the trial judge, Judge Riethmuller, would be placed in a position where he could not continue to hear the matter. Counsel assured me that the matter should be dealt with now because the argument as it stood was as good as it could be at trial.
I concluded that the 5 October Letter was not admissible, and that the impugned clauses and particulars should be struck out. I made orders accordingly, and also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vacic v DC Strategy Pty Ltd

Details

AGLC: VACIC v DC Strategy Pty Ltd [2018] FCCA 3151
Case: [2018] FCCA 3151
Decision Date: 7 November 2018

CaseChat Overview and Summary

The applicant, Mr Vacic, sought to set aside a default judgment entered against him in favour of the respondent, DC Strategy Pty Ltd, in the Supreme Court of New South Wales. The dispute arose from an alleged breach of contract, with DC Strategy Pty Ltd having obtained default judgment after Mr Vacic failed to file a defence within the prescribed time. Mr Vacic sought to have this judgment set aside on the grounds that he had a meritorious defence to the claim and that he had a valid and explainable reason for his failure to file the defence.

The primary legal issue before the Court was whether Mr Vacic had demonstrated sufficient grounds to justify setting aside the default judgment. This required the Court to consider two key elements: firstly, whether Mr Vacic had a reasonably arguable defence to the claim brought by DC Strategy Pty Ltd, and secondly, whether his failure to file a defence was due to a "good reason" or an "honest mistake" that ought to be excused. The Court had to balance the respondent's right to enforce a judgment obtained due to the applicant's non-compliance with procedural rules against the applicant's right to have his case heard on its merits.

In determining whether Mr Vacic had a meritorious defence, the Court examined the material before it, including affidavits and submissions, to ascertain if there was a real prospect of success. The Court also considered the explanation provided by Mr Vacic for his delay in filing the defence, assessing whether it amounted to an honest mistake or a deliberate disregard of court processes. The Court applied the principles established in cases concerning the setting aside of default judgments, which generally require a demonstration of both a defence on the merits and a sufficient excuse for the non-compliance.

The Court ultimately ordered that the default judgment be set aside, conditional upon Mr Vacic paying the respondent's costs of the application and filing his defence within a specified period. This outcome indicated that the Court was satisfied that Mr Vacic had presented a reasonably arguable defence and that his failure to file the defence was attributable to an understandable, albeit not entirely excusable, oversight.

Orders